September 4, 2007

For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same."

That sounds overblown to me. Is Souter such a fragile character? Or do you think it would be noble for a man in his position to weep over what he saw as the degradation of the institution he loved.

Well, just keep in mind that Gore came out in summer of 2002, as the administration was starting to put Afghanistan on the back burner and redirect the focus towards Iraq, saying that it was a mistake and that we should remain focused on winning in Afghanistan.

So clearly the situation we find outselves in today, in Iraq, was a direct consequence of that decision.

And I don't consider Souter to be psychic, but if he were, and if he could see what has happened to our military then I believe he would weep for that reason.

Eli: Please, spare us. Cry for the dead and injured, but for the military? Do you know any, work with any, talk to any? For me the answer is yes, yes, yes, many times over and no one wants you to cry for them.

This is an influential blog, and I'm sure there are influential executives from Post reading this, and you have to listen to me, people: you ruined a great cereal. There's enough healthy food out there. Bring back the sugar-coated goodness of Alphabits.

And don't even get me started about the so-called "new and improved" Fruity Pebbles.

Ann says: "That sounds overblown to me. Is Souter such a fragile character? Or do you think it would be noble for a man in his position to weep over what he saw as the degradation of the institution he loved."

Well, unless you think Toobin is lying or has no tapes or notes, reflecting exactly what he heard, you're merely injecting your own spin on what you think Souter actually said or meant.

Why would you of all people, an attorney, not understand the immense historical relevance of the Supreme Court's decision to step in...something I personally think they have absolutely no right to do.

And it wouldn't have to be Toobin lying. Who were his sources? The sources could have exaggerated and Toobin could simply have punched it up to create buzz for his new book, which has to have some revelations in it. As it is, this a pretty weak point of interest.

1. If there's anything we've learned recently, it's that big media types never make stuff up. It's against the code of ethics.

2. Toobin can't have made it up because doing so would have been "merely injecting" his "own spin on what" he though "Souter actually said or meant" A man of Toobin's integrity would never do this. You, a law professor, on the other hand...

Gore's been proven to right about damn near everything he's ever said about Iraq, the Mideast, global warming, etc...we have a moron in the White House who evidently can't wait to leave...so he can "fill his coffers"...and most of the people here deride Gore.

He wept, why? Because his was a principled decision and he doesn't grant that his colleagues also rendered a decision in good faith? Or because "his man" didn't win? It's got to be one or the other and, IMHO, Souter doesn't look good in either case.

Bush v Gore rehashing will provide a living for tens of thousands of people for decades to come.

I read Alan Dershowitz' book - the only anti Bush v. Gore one I could stomach. I guess I only understand 2 things about the case:

1) It was a federal election, and

2) It settled a clear violation of due process

Now when Dershowitz was on a call-in program in 2002, I called in and asked him why I might be wrong. As smart as Alan is and as long as he talked in response, even the host - who was in complete sympathy with Dershowitz' position - said that Alan didn't answer my question at all.

Seven of the nine justices found that the Florida recounts were unconstitutional. The strictly results-oriented Souter and Breyer probably would have flipped if the would-be winner had been a Democrat, making it nine of nine.

Even if all three of the conservative justices had flipped as well, the limited recount would still have been stopped on a 6 to 3 vote.

Seven of the nine justices found that the Florida recounts were unconstitutional. The strictly results-oriented Souter and Breyer probably would have flipped if the would-be winner had been a Democrat, making it nine of nine.

Even if all three of the conservative justices had flipped as well, the limited recount would still have been stopped on a 6 to 3 vote. 5:

Right. Sure. No question.

Meanwhile, I've got some bridgefront property near Ann's new digs I'd like to interest you in.

Because his was a principled decision and he doesn't grant that his colleagues also rendered a decision in good faith?

The phrase "good faith" got a restraining order prohibiting the Bush v. Gore decision from coming within 100 yards of it.

Seriously, though: the justices most hostile to civil rights voting claims in general suddenly found one claim they could approve of; the plaintiff had no standing to sue (not being a Florida voter); the per curiam opinion deliberately obfuscated the vote, giving the impression that it was 7-2 rather than 5-4; Thoms' wife had a job with the Bush transition team (a job, obviously, that wouldn't have materialized had the election gone the 'wrong' way) and Scalia's son was working for the Bush campaign in some capacity; etc., etc., etc.

'Good faith'? Sorry, but no sentient (and honest) human can possibly consider it a decision reached in good faith.

Seven of the nine justices found that the Florida recounts were unconstitutional.

Sadly, no. You're basing that on what the majority opinion claims (the bit I referred to as 'dishonest').

Here's Souter:"The Court should not have reviewed either Bush v. Palm Beach County Canvassing Board or this case and should not have stopped Florida's attempt to recount all undervote ballots by issuing a stay of the Florida Supreme Court's orders during the period of this review. If this Court had allowed the State to follow the course indicated by the opinions of it's own Supreme Court, it is entirely possible that there ultimately would have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U.S.C. 15. The case being before us, however, it's resolution by the majority is another erroneous decision."

Here's Breyer:"The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume."

If Toobin's book had related the very same situation, but with Clarence or Scalia or Roberts weeping over a deeply held belief or decision, the wingnuts here, including the Queen, would all be whining about how horrible Toobin was to reveal the obvious "private moment" of a man who allowed his true feelings to surface.

*Boy, and on another note: I bet our soldiers in Iraq are rooting for Bush to get some really good speaking opportunities lined up...you know...so he can "replenish his coffers."

Sorry, I was assuming that people were more generally familiar with the decision than that. The earlier statement that "Seven of the nine justices found that the Florida recounts were unconstitutional" is based on counting both Breyer and Souter in the seven--which, if you read their dissenting opinions, they were clearly not.

As to the suggestion that Souter broke down over the decision, I'm a little less cynical. Would we be surprised if Kennedy cried - at very least with frustration and rage - over Stenberg, which by all accounts he took as a personal betrayal? Ditto Scalia when Kennedy ratted in Casey?

Ann, you've said that Butler gave you insomnia - you had a powerful emotional reaction to that case. And you weren't even on the court! Imagine yourself with the same feelings about the case, but you're a Justice, and the case has just been handed down. Now you not only have a case you think is horribly wrong, but combine it with a sense of personal failure - you'd been in a position to try and reason with the majority in that case, to try and stop this abomination! Yet you couldn't quite do it, and the case came out, in all its malformed hideousness anyway. Is it really hard to believe that Justice Souter couldn't have had a similar reaction after Bush?

I think LuckyOldSon's not far from the mark, funnily enough - some of the decisions that the court has made have been incredibly important, of momentous consequence. If you're on the losing side of that case, that's already going to be hard enough - but if on top of that, you sincerely believe, in all good faith, that this case was not only wrongly-decided, will not only have horrible consequences, but that the majority actively twisted the law to reach that result, then yes, I can understand blowing one's lid. How that presents itself in different people is going to vary.

With that said, Luckyoldson said..."I love the wingnuts on this blog. Gore's been proven to right about damn near everything he's ever said about Iraq, the Mideast, global warming, etc...we have a moron in the White House who evidently can't wait to leave...so he can "fill his coffers"..."

...None of which has anything at all to do with whether Bush v. Gore was correctly-decided.

Hey I have a better idea. How about everyone take a basic Voter Smart Test which will ensure that even people who can track 20 bingo cards at one time can also handle a Democrat designed ballot that was simple enough for 3rd graders to figure out.

If you aren't smart enough to do that, we really don't need these people voting.

Tom,I've written a couple of times about what I think happened in Bush v. Gore, most recently here. I think you're correct that Rehnquist, Scalia and Thomas didn't like the equal protection argument, but the refusal of O'Connor and Kennedy to go along with the Article II argument (which, as I see it, had the best argument of the day) left them no choice. Like Justice Black, they were flexible enough to understand that "[p]laying the game perfectly is very nice -- but even more important is winning the big ones," and while "they were forced into a bad position in that case ... they made the right call. As Ann has well-put the point, the 5-4 result was not the worst possible outcome - 'imagine if the Court’s critics had been able to say that the Court gave the presidency to Bush citing two completely different reasons, both of which were rejected by a majority of the Justices!' Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court, 61 Md. L. Rev. 508 (2002))."

I said that seven of the nine justices found that the recount was unconstitutional. Your reply cites the other two -- i.e., you're basing your decision on what the two-vote *minority* claims. If you want to dispute that Stevens and Ginsberg found the recount unconstitutional, try quoting *them*.

In reality, of course, Ginsberg and Stevens both noted that due process had been violated. They differed from the majority in that they felt the case should be sent back to the state court so that a new, non-violating recount process could be developed. In other words, they favored a recount while agreeing that Gore's recount was unconstitutional. That is why they explicitly did not join with the opinion you selectively quoted, above, for the portion holding that there was no Due Process violation.

The earlier statement that "Seven of the nine justices found that the Florida recounts were unconstitutional" is based on counting both Breyer and Souter in the seven

Gore is fat, and unfit. Dimples or no, he needs to shed 100 pounds before the American people can take him seriously on any topic except dieting (I'd love to hear him on this topic!). He's just a Slim-a-Bear until he gets a sense of porpoise and cools the bipolar heat gimmick.

I voted for him, and was upset that the court voted in favor of Bush who's now been planted in the WH for nearly 7.

But Souter's behavior is silly: crying over moocow liquids that have been spilled. What a mindless wuss. The sixties ruined men. Someone give Souter their hanky. A lil dab'll do ya, Wavy Davey!

Sadly, no. From the per curiam opinion:"Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See Post at 6 (Souter, J. Dissenting) post at 2, 15 (Breyer, J. Dissenting). The only disagreement is as to the remedy." [emphasis added]

Tom -- So what are you you suggesting? That the court accidentally got the case wrong?

The substance is all that matters. The substance is: if you want to recount some votes in a place, you have to recount all of them.

Having said all this, the Supreme Court should never have been involved. It should have yielded to the Congress, which is what the Constitution says to do, and what a government of the people, by the people, and for the people ought to do.

If the situation in Florida had been exactly reversed in 2000, would the Supreme Court have found in Gore's favor?

The reverse is logically impossible. If Gore was ahead, there is no way the Florida Supreme Court would have allowed a recount.

I'm not comfortable with the reasoning in Bush v. Gore, but I'm not going to lose any sleep over it either. If it was decided for political reasons then the worst it did was balance out the political reasoning of the Florida Supreme Court. If politics had been kept out of it, Bush would still have been president.

Seven Machos said..."[The Court] should have yielded to the Congress, which is what the Constitution says to do...."

Congress (or more specifically, the House contigency) can't come into play until the electoral college has met and deadlocked per the 12th Amendment. At issue in Bush v. Gore was the disposition of Florida's electoral votes; the only outcome that could have thrown the election into the House would have been if Florida's vote had been nullified entirely. There was no way for the court to "defer to Congress" - it had to decide the case before it, which meant, functionally, saying that either Florida votes for Bush, in which case, Bush wins with 271 votes, or Florida votes for Gore, in which case, Gore wins with 291 votes.

Simon -- I disagree. Florida was not going to finish its recount in time. The executive and the judiciary were completely at loggerheads. Therefore, Florida was having a constitutional crisis. Fine. Let Florida deal with that.

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.

If Florida is disqualified, you don't have the whole. This throws the election to the States.

The Supreme Court can find whatever it wants to find, and it defers to the legislature all the time.

"The situation was reversed. They found against Gore. What are you talking about?"

Not sure what you're talking about actually. My point is simply that if the situation were reversed -- if the arguments supporting Bush supported Gore and the arguments supporting Gore supported Bush -- most Court observers and probably most Justices would have taken the opposite positions.

Your attack on the Bush supporters provides a precise pattern for the attack on the Gore supporters. Neither side seems more honest than the other, though I think there are some honest people in there.

I offer myself as an example of a Gore supporter (absolutely committed at the time) who accepted the reasoning for Bush. Not that it was clear and that no other position was creditable, but that it made sense and was coherent.

"they got there in a decision remarkable for its illogic and inconsistency..."

...because I don't agree with the result!

Are we still arguing over this boring topic, seven years on? Let's get back to Souter weeping! That means we can call him "Weepy". Then we have Sleepy, Grumpy, Creaky, Whitey, Dumpy... Let's see, who are we missing?

Seven, as I said in my comment immediately above, the only way to throw the election was to nullify Florida's electoral votes entirely - which, as you correctly observe, would have left Gore with more votes, but four short of the majority of votes cast required by the 12th Amendment. But how and why do you think Florida's votes would be cast aside? Florida was going to vote one way or another; if the Supreme Court of the United States hadn't stepped in, then the disposition of those votes would have been determined by the Supreme Court of Florida. Of course, conceivably, Harris could simply have ignored the Supreme Court of Florida and certified the election for Bush, and that'd maybe provoke a constitutional crisis in Florida, but it would be collateral to the slate of electors, who would still be directed which way to vote (conceivably it might increase the odds of faithless electors). Ditto if the legislature had simply replaced the entire slate on its own initiative. That such things spark massive crisis in Florida doesn't disturb what the slate's actually doing.

I just don't see where you're finding a mechanism for Florida to not vote one way or the other, which is what you need to throw the election to the House.

And of course the court defers to legislatures, but not in the manner you're talking about; it defers to legislatures on matters such as the constitutionality of a statute; it doesn't do so by throwing out an entire state's slate of electors from the electoral college, or mandating that we just straight to the House contingency. What do you think the court ought to have done, specifically, so as to "defer to Congress"? Refuse to grant cert? Produce a different remedy? What?

Tom -- Yeah, having your vote be equal to the next guy's is crazily odd, as is the idea that the legislature should make the law before an election, not the judiciary after the election.

Tell us, Tom: despite all this terrible judicial decision-making, surely, cold, cruel, truthful revenge has been served, right? Tell us, Tom: where can we find the body of facts that shows that Gore won Florida? Where is that body of evidence?

"If Toobin's book had related the very same situation, but with Clarence or Scalia or Roberts weeping over a deeply held belief or decision, the wingnuts here, including the Queen, would all be whining about how horrible Toobin was to reveal the obvious "private moment" of a man who allowed his true feelings to surface"

Not so. I would doubt that any of the Justices cry about the legal reasoning in the cases. They may occasionally shed a tear over the facts of the cases, but I think they have guts about reasoning through to the outcomes and dealing with the differences of opinion. I think they are all sane, smart, well-balanced, and in possession of good character.

Sadly, no. From the per curiam opinion:"Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See Post at 6 (Souter, J. Dissenting) post at 2, 15 (Breyer, J. Dissenting). The only disagreement is as to the remedy." [emphasis added]

I have no idea how you managed to misread that so badly that you arrived at the conclusion that Souter and Breyer were members of the seven (although I noticed that the link you provided above goes to a bunch of people who made the same mistake). Souter and Breyer are cited because they were the two who agreed with NONE of the majority's findings! Try actually reading the opinions. You'll see that seven out of the nine -- Rehnquist, Stevens, Ginsberg, O'Connor, Scalia, Thomas, and Kennedy -- agreed that the existing recounts were unconstitutional. They differed as to the proper solution, as I noted earlier. Only Souter and Ginsberg found no Constitutional problems.

It is pretty obvious you're in over your head here. Let me simplify it for you. There are two basic questions here: "Was the Constitution violated?" and "If so, who should fix the recount process?"

Scalia, Rehnquist, O'Connor, Kennedy, and Thomas answered "Yes" and "the US Supreme Court".

Ginsberg and Stevens answered "Yes" and "the Florida Supreme Court".

Souter and Breyers answered "No" and "Not applicable".

So -- like I said -- seven out of the nine agreed that Gore's recount was unconstitutional.

Here lies the rub. If Gore would have gotten his 4 counties counted only and somehow squeaked by, a recount of the state later on would have shown a Bush victory. It would have been bad for the country if Gore was in office when everyone knew that he did not win Florida. That would have been a bad outcome for the country.

Well, if Tom's transcription is accurate, then it was already obvious that Souter had lost the ability to punctuate properly. Time to retire. :-)

"The Court should not have reviewed either Bush v. Palm Beach County Canvassing Board or this case and should not have stopped Florida's attempt to recount all undervote ballots by issuing a stay of the Florida Supreme Court's orders during the period of this review. If this Court had allowed the State to follow the course indicated by the opinions of it's own Supreme Court, it is entirely possible that there ultimately would have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U.S.C. 15. The case being before us, however, it's resolution by the majority is another erroneous decision."

Tom Hilton said..."Five justices were determined to achieve a certain result, and they got there in a decision remarkable for its illogic and inconsistency."

Seems to me that nine justices were determined to achieve a certain result. I agree with you about the per curiam, but you have to consider what was at stake if WHR, AS and CT had refused to join an opinion that reached the right result for the wrong reasons. Do you really disagree with Ann's point (quoted in my 6:38 PM comment, above) that a 4-3-2 split with the three concurring only in the judgment would have been even more detrimental to the nation than a 5-4 split?

I'm willing to believe that SOC and AMK genuinely bought the equal protection argument; it's consistent with their other decisions. That said, I also buy the Vanity Fair expose to the extent that I think they knew the Article II argument was right, but refused to join it because it wasn't sexy enough.

Most everyone I know cried when Shrubya was elevated to the Presidency by the the Supreme Ct. Yes, I'd say we cried repeatedly over it because we knew that he was no "compassionate conservative," but just a tool of rich, greedy Republicans. His obscene tax cuts for the rich at time of war was also cause for much tears and a coup d'etat, as well.

I became 100% convinced of the corruption on the Supreme Court in the Bush v. Gore case when I saw Sandra Day O'Connor being interviewed by Charlie Rose. She became visibly upset when he asked her some question pertaining to the case. She admonished Charlie to change the subject because he knew that that was a precondition for her appearance on his show.

I don't blame her one bit for not wanting to talk about a political decision that will go down in infamy, and tarnish her otherwise good reputation forever. The decision was so bad that it now evokes only anger and disgust in me; my tears are all dried up after what she helped put our country through the last 7 years.

Seven, why are you dignifying him by engaging... Even LOS spins a coherent argument from time to time. Anyone who seriously thinks that the present administration has mounted a "coup d'etat" isn't worth wasting breath on.

It's important to counter this crap. I'd much rather ignore Lucky, a garden-variety troll.

But Trumpit may be a one-stopper. And when Trumpit goes back to where Trumpit came from, Trumpit will have to deal with the facts I have pointed out. Possibly the cognitive dissonance will become overwhelming and I will be the straw that broke the camel's back.

I tell you only once that you are a mental midget. From now on, others will have to point it out. What I said was that his tax cuts for his rich cronies was worthy of a coup d'etat to save the country. No go back to your regularly schedule program. I finally understand the term "troll" from the comments on this blog.

Whew. Was that ever a hard thread to get through. Can't believe you can still debate this. The whole time I was thinking about animating a dead horse being beaten, but then not because I like horses too much.

As to the item, ^^^ up there, visualizing Souter crying about this is most disturbing. I honestly didn't imagine him capable of that kind of emotion. That is, I imagined him to be more stoic.

Trumpit said..."Simon, I tell you only once that you are a mental midget."

Duly noted. Of course, if you actually think a tax cut is something worthy of a coup d'etat then you're simply proving the point that liberals will gladly resort to force to get their way when all other means fail. You're no different to Barrett threatening newspaper editors who fail to be adequately anti-war with the gallows - disagree with me and die. Scratch a nutrooter, find an authoritarian.

If Gore would have bowed out of the recount gracefully like Nixon did in 1960 and avoided being a global warming freak, he would be the Democratic nominee.

Actually, he might be the president, instead of just the Democratic nominee. All it probably would have taken would have been being statesmen like.

I consider Gore to have been a much better candidate than Kerry was, and Gore would not have lost all those Vietnam vets who voted against Kerry primarily because of his anti-Vietnam War Congressional testimony.

PM post by Gahrie about the bottom line. It's what the history books will say rather than the "We was robbed 'n blacks was disenfranchised narrative of whining the Left has tried to spin.

Sloan and later Hayden at 10:15 had other fine posts.

If Gore had acted like a Statesman in 2000 instead of going off the rails, he had 2004 and the Presidency all his for the taking. Especially if he had used 2002 and 2003 not to give speeches raging at Bush, but had worked to mend fences with Southern voters about how Hollywood fatcats had led him astray on gun banning and the sanctity of the UN being the final word in all American foreign policy.

Other posters were dead on about Kerry being the one person so many Vets couldn't vote for. If anything, their contempt of him only deepened from his 2004 campaign and his remarks in 2006.

You mean the tax cuts that will produce a balanced budget [pdf] in 2012?

You're missing the point, Tully. Whenever a leftie rants about "tax cuts for the rich", he is signaling that his real complaint with the current tax situation is that rich people aren't being screwed out of their money badly enough to suit him. Even if you point out that actual inflation-adjusted tax revenue from "the rich" has *increased* since the tax cuts that still isn't good enough. You're dealing with a person who would rather confiscate 100% of $100,000 than 25% of $500,000, because in the latter scenario the "rich" guy gets to keep too much of his money. You can't reason with people whose main motivating factors are bitterness and envy.

Ann said - " Or do you think it would be noble for a man in his position to weep over what he saw as the degradation of the institution he loved."

yes i do think it would be noble. if you can weep over seeing or hearing great art and artists, if passages in a book stir you to better place, if your job, your life's choice of effort and focus, is truly a labor of love, it/they deserve a tear when cheapened.

Revenant, I always find it amusing when someone as egregiously wrong as you tries to be patronizing. It's kind of like Inspector Clouseau trying to be suave.

Rather than prolong the amusement, however, I'll make it simple for you. From Justice Ginsburg's dissent: "I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim."

Perhaps in the up-is-down world of the Republicans, that means she thinks petitioners have presented a substantial equal protection claim. Here in the real world, it does not.

"if you can weep over seeing or hearing great art and artists, if passages in a book stir you to better place, if your job, your life's choice of effort and focus, is truly a labor of love, it/they deserve a tear when cheapened."

Not the same at all. Weeping at beauty isn't like weeping in sadness or despair. I would never weep at bad art! I may think art is going to hell these days, but I can't imagine crying about it. By the same token, I have sometimes cried on reading a beautifully idealistic line in a written opinion, but I don't think I'd cry over the outcome of a case. I might cry, however, if I was forced to sit for hours with people who repeatedly and smirkingly expressed their lack of concern for civil rights, but only if they also reacted to my criticism by suddenly yelling at me in a weird, harsh way. But I wouldn't cry later and repeatedly.

You keep beating a dead horse. I answer you for the same reason that I get back to anyone who passes on an Urban Legend.

While you duke it out with Revenant, you avoid coming to grips with Seven M’s basic question to you:

“Tom -- I'm confused. Two people disagreed with the holding so it wasn't 7-2? Please. Do tell us more.”6:13 PM

You even quote from the opinion:

“Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the remedy.”

But you are not deterred by your quoted statement since you counter that it is wrong (I think you suggested that it was a lie) because it

"is based on counting both Breyer and Souter in the seven--which, if you read their dissenting opinions, they were clearly not."

You must think that Breyer & Souter did not read the opinion, which of course they did. It is absurd for you to think that they would have allowed the majority to say this, that is to assert that they, Breyer & Souter, had agreed that the FL Supremes had acted unconstitutionally, if they themselves did not agree with it.

So when you play as your trump card that Ginsberg & Stevens dissent as to the constitutional problems, you have two Justices saying that & only two. Nine minus two = seven.

Read the whole thing as the saying goes. And try to understand that the quoted material you supplied from these two justices does not contradict the statement in the opinion which you quoted.

The Exalted:

You think that this was “ the most poorly reasoned and openly political decision in recent history.” You are then completely unaware of the Supreme Court’s decisions during the Warren & Burger periods?

I don’t know if you are being sarcastic here, but the only “Constitutional Scholars” I see on this blog are Prof A & Simon.

The rest of us range from lawyers who took an interest in this case & read the SCOTUS opinions carefully & followed the events which were unfurling to those who relied on second-hand summaries of the case & selective consideration of the events, including legends, with most, I suspect falling somewhere in between.

I don’t think that one need be a scholar to have an opinion on this case so long as he understands the facts & considers what would have happened if the court had not so ruled.